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How damages, cost, and expenses as certained.
In the case of neutral vessels, the master's per sonal expenses and adventure are usually allowed, where his conduct has been fair and unimpeachable; but where the master or crew prevaricate, or where the ship has been engaged in an unlawful or fraudulent trade, their adventures are never restored.
Where the damages, costs and expenses are to be ascertained and determined, it is the practice of prize courts to refer it to the commissioners to hear the parties, examine their statements and accounts, and to report to the court in detail, such sum as they think equitably or legally due to the parties, and to accompany their report with the reasons upon which they base their allowance or disallowance of the respective items. Upon the return of this report, the parties are heard upon exceptions, substantially—though not formally, as in chancery-for the proceedings in prize courts are always as in summary and not plenary suits in the civil law.?
Execution of decree.
Where restitution is decreed, and the property remains specifically in the custody of the court, a warrant issues for its delivery to the claimant, and the expenses attending such delivery are to be borne by the captors, unless it be ordered otherwise. If the property has been sold, and the proceeds are in court, an order issues for the delivery of such proceeds; but, if the proceeds are in the
· The Calypso, 2 Rob., 298; The Inna Catherina, 6 Rob., 10; The Anna Catherina, 4 Rob., 120; The Christiansberg, 6 Rob..
The Lively, 1 Gall., 315. 3 The Rendsberg, 6 Rob., 142
hands of an agent or the captors, a monition or an attachment is issued, to compel the bringing in of the proceeds. By the practice in the courts of the United States, if the prize property is once brought within the territorial jurisdiction of the court, either the property or its proceeds remains in court at the final decree, because it is always either in the custody of the commissioners or the marshal, who hold alike as officers of the court. The office of prize agent is abolished by statute, and the property is never, as in England, placed in the possession of the captors.
Where damages are decreed against the captors, such decree is either against them by name, or by a description of their relation to the ship; and where the decree is against the owners of a privateer generally, a monition may be issued against them personally, to compel the payment of the damages assessed. Such monition may also issue against the sureties on their bond, given on the granting of the letters of marque. A part-owner is liable for damages, where a decree for damages has been rendered, with that of restitution, even though his name does not appear in the registry as part-owner, and the representative of such part-owner is responsible for costs and damages decreed generally against the owners, although the part-owner of whom he is the representative, was not the doer of the wrong for which damage is decreed, and a release by the claimants of one part-owner, does not supersede the necessity of making him a party with the others to a suit for the proceeds.
· The Two Susannus, 4 Rob. 278; The Franklin, 4 Rob., 404; The St. Lawrence, 2 Gall., 19; The Jefferson, 1 Rob., 325.
Order for far
If, upon the hearing on the papers and preparaWhen made. tory examination, any doubt arises from any quarter,
or upon any material point, the court may order farther proof, and is in no case precluded by the original evidence. Sometimes such an order will be made where a suspicion is created by the extrinsic evidence. An order for farther proof, however, is rarely made, unless there be something in the original evidence which suggests the propriety or the necessity of a farther prosecution of the inquiry. Where the case is quite clear in favor of the claimant's right to restitution, and is in no respect subject to any just suspicion, the disposition of prize courts is decidedly against allowing the captors to enter upon farther inquiry or to introduce extraneous evidence.1
Farther proof is in no case a matter of right to either party, but always rests in the sound discre tion of the court. It is only when the parties have conducted themselves honestly and with good faith, and the errors or deficiencies which exist in the proof are fairly referable to ignorance or honest mistake, that the indulgence is granted of allowing new evi. dence.
Where the master does not swear to, or give account of the property; where the shipment, though sworn to be on neutral account, does not specify the person; where the ship has been purchased in the enemy's country; where any loss or material suppression of papers has occurred; where the papers are defective, and the conduct of the parties, the nature of the voyage, or the nature of the original
'The Adriana, 1 Rob., 313. The Romeo, 6 Rob., 351; The Sarah, 3 Rob., 330
evidence creates a reasonable doubt of the proprietary interest, the legality of the trade, or the integ. rity of the transactions--in all such cases, farther proof becomes necessary, and will be permitted if the privilege of introducing it be not forfeited by the fraud or misconduct of the parties.'
In all cases where farther proof is necessary, and it is not allowed, a condemnation follows of course, in like manner as if the evidence had established hostile character.
Farther proof is never allowed to claimants where when not alfraudulent papers have been used, or where there has been a voluntary spoliation of papers, or a fraudulent covering or suppression of an enemy's interest, or where there is a false destination and false papers, or where the case is palpably incapable of fair explanation, or where there has been prevarication, or an attempt to impose spurious claims upon the court, or such a general want of good faith as to show that the parties cannot safely be trusted with an order for further proof. And if, upon farther proof, none such is produced, or that which is produced is defective, or the parties decline to testify, or do so evasively, it is deemed conclusive against them, and condemnation follows; for it is a general rule of prize courts, that the onus probandi rests upon the claimants, and if they fail to sustain their allegations, condemnation ensues.?
The Jonge Pieter, 4 Rob., 79; The Welvaart, 1 Rob., 122; The Polly, 2 Rob., 261; The Juffrow Anna, 1 Rob., 125; The Graaf Bernstoff, 3 Rob., 109; The Eenrom, 2 Rob., 1; The Juffrow Elbrecht, 1 Rob., 127; The Rising Sun, 2 Rob., 104.
· The Nancy, 3 Rob., 122 ; The Mars, 6 Rob., 79; The Vrow Hermina, 1 Rob., 163; The Walsingham Packet, 2 Rob., 77; The
Evidence on order for far
Farther proof may be ordered in favor of the one party, and not the other, or in favor of both.
When it is admitted on behalf of the captors, ther proof."- they may introduce papers taken on board another
ship, if properly verified by affidavit, and they may invoke papers from another prize cause, axd upon an order for farther proof, the affidavits of the captors themselves, as to facts within their own knowl. edge, are admissible in evidence.
It has been held in one case, not however reconcilable with the strict rule of prize courts, that the captors, to show the domicil of the claimants, may, without an order for farther proof, introduce at the first hearing, a deposition of the claimant, given in another cause."
Where farther proof is allowed the claimants, proof taken.
their own depositions, those of their clerks, and the correspondence between them and their agents, are admissible in evidence.2
In all cases of farther proof, the additional evidence, wherever practicable, should be taken before the prize commissioners, and reported to the court. Afidavits taken in foreign countries, before notaries public, whose attestations are perfectly verified, have been admitted in evidence, but the safer course is that which is adopted by the rule of
Rosalie and Belty, 2 Rob., 343; The Countess of Lauderdale, 4
| The Romeo, 6 Rob., 351; The Maria, 1 Rob., 340; The Sarah, 3 Rob., 330; The Vriendschap, 4 Rob., 166; The Resolution, 6 Rob., 13.
? The Allelaide, 3 Rob., 281 ; The Sally, 1 Gall., 401; The Grotius, 9 Cranch, 368; The Haabat, 6 Rob., 54; The Glierktiget, 6 Rob., 58; The Charlotte Caroline, 1 Dod., 192; The Maria, 1 Rob., 349.